BENEFICIAL OWNERSHIP AND ABUSE OF LAW INTERPLAY

ANALYSIS IN THE LIGHT OF THE EUROPEAN COURT OF JUSTICE'S NEW JURISPRUDENCE

Abstract

Article deals with overview and some implications of European Court of Justice's (CJEU) judgments in Danish Beneficial Ownership cases. In six jointed cases, right to witholding tax exemption, according to EU Interest and Royalties Directive (IRD) and Parent and Subsidiary Directive (PSD) in cases of abusive tax practices, has been questioned. Among other things, within two judgments, CJEU puts special attention
to the relationship between beneficial ownership concept and general EU principle of abuse of law. By specifying the concept of the beneficial ownership in detail, relying heavily on OECD’s guidelines and international tax practice, and providing specific indicia for identifying abusive practices, the Court brings these two concepts into the relationship of interplay. Furthermore, by interpreting the EU general abuse of law principle, CJEU eliminates the need for national or treaty-based anti-abuse provisions, by which, in fact, confirms the principle of the prohibition of abusive tax practices as a direct expression of the general legal principle of abuse of law. In addition to making a further step in the development of this principle in Union law, the paper will show that the new, or upgraded, mechanism presented by these judgments represents logical sequence of the trend and doctrine developed by earlier Court judgments, but at the same time a clear indication of the Union's political commitment in the fight against
international tax avoidance.